ACCEPTED
03-15-00121-CV
4393566
THIRD COURT OF APPEALS
AUSTIN, TEXAS
3/6/2015 9:03:54 AM
JEFFREY D. KYLE
CLERK
NO. 03-15-00121-CV
IN THE COURT OF APPEALS FILED IN
THIRD DISTRICT OF TEXAS 3rd COURT OF APPEALS
AUSTIN, TEXAS
AT AUSTIN, TEXAS 3/6/2015 9:03:54 AM
JEFFREY D. KYLE
Clerk
TOM BENSON
Appellant,
vs.
THE STATE OF TEXAS,
Appellee.
APPELLANT'S MOTION TO DETERMINE PROPER DESIGNATION
OF CASE AND APPROPRIATE APPELLATE FILING FEE
TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:
Appellant, Tom Benson, asks this Comito determine the proper designation
of this case and the appropriate appellate filing fee, if any.
1. Appellant is Tom Benson; appellee is The State of Texas.
2. No rule provides a deadline to file this motion for the relief requested.
3. Appellant timely filed a Notice of Appeal in this Court. Appellant also
timely filed a supersedeas bond to suspend enforcement of the judgment entered by
APPELLANT'S MOTION TO DETERMINE PROPER DESIGNATION
OF CASE AND APPROPRIATE APPELLATE FILING FEE PAGE l OF 5
the trial court on the State of Texas' Motion for Summary Judgment; requested the
clerk's record.
4. The clerk of this court filed this case under the designation "CV" which
is the designation given a civil case.
5. The clerk has erred in filing this case as a civil case with the designation
"CV".
6. It is firmly settled law that a criminal bail bond forfoiture proceeding is
a criminal case, not a civil case, with final appellate jurisdiction vested with the Court
of Criminal Appeals. Safety National Casualty Corporation (Agent Michael W. Cox)
v. State o.f Texas, 305 S.W.3d 586, 588 (Tex. Crim. App. 2010) ("Safety National 2").
The First Court of Appeals was faced with this exact case designation
issue in Safety National Casualty Corporation (Agent Michael W. Cox) v. State of
Texas, 273 S.W.3d 730, 731-732 (Tex. App. - Houston [1" Dist.] 2008) (Safety
National I"), reversed on other grounds, Safety National Casualty Corporation
(Agent.Michael W. Cox) v. State o[Texas, 305 S.W.3d 586 (Tex. Crim. App. 2010)
("Safety National 2") and determined that "CR" is the correct case designation.
7. Appellant requests the Court to amend the case designation in this case
from "CV" to "CR".
APPELLANf'S MOTION TO DETERMINE PROPER DESIGNATION
OF CASE AND APPROPRIATE APPELLATE FILING FEE PAGE2 OF5
8. The clerk by letter requested appellant to pay the $195.00 filing fee
assessed on civil cases filed in this court by March 6, 2015 or this appeal will be
dismissed. This demand has raised the issue of the proper filing fee due if any in this
case and the proper case designation.
9. This fee issue is also settled by Safety National 2 and this Court's own
fee schedule. The Court's fee schedule is published as Item No. 18 in the
Practice Before the Court page on the internet at
"http://www.txcourts.gov/3rdcoa/practice-before-the-court.aspx".
10. In Safety National 2 the Court of Criminal Appeals held stated that "[W]e
conclude that the current version, Article 44.44, Texas Code of Criminal Procedure,
also excludes the application of civil-case fees by the court of appeals in appeals from
criminal bond-forfeiture proceedings." Safety National 2, 305 S.W.3d 586 at 590.
11. None of the statutory authority cited in Safety National 1, Safety National
2 or this Court's fee schedule have been amended, or amended in a way that alters the
holding in Safety National 2 and it remains binding on this court These are: Texas
Code of Criminal Procedure art. 44.42 and 44.44; Texas Government Code Sections
51.005, 51.0051, 51.207, 51.208, 51.851, 51.852, 51.941 and 552.262; Rule 13.3(g)
APPELLANT'S MOTION TO DETERMINE PROPER DESIGNATION
OF CASE AND APPROPRIATE APPELLATE FILING FEE PAGE3 OF 5
Rules of Judicial Administration; I Tex. Adm. Code 70.3 and Texas Supreme Court
Misc. Docket No. 13-9127 dated August 16, 2013.
12. The Court is requested to direct the Clerk to only assess fees that are
authorized for the filing of criminal cases, if any, against appellant and to reverse or
refund any civil filing fee collected under protest.
RELIEF REQUESTED
Appellant requests the Court to direct the Clerk of this Court to amend the
designation of this case from "CV" to "CR" and to also direct the Clerk to assess
against appellant filing fees that are assessable upon the filing of a criminal case, if
any and for such other relief to which appellant has shown itself entitled.
Respectfully submitted,
Isl Tom Benson
---------------
Tom Benson, Prose
900 Jackson Street, Suite 750
Dallas, Texas 752202
Texas Bar I.D. 02170500
(214) 742-9898
tomrbenson@gmail.com
APPELLANT'S MOTION TO DETERMfNE PROPER DES!GNAT!ON
OF CASE AND APPROPRIATE APPELLATE FILING FEE PAGE40F5
Certificate of Conference
I certify that on .March 5, 2015 after 5:00 P.M., I attempted to communicate with
Tim Labadie, Assistant Travis County Attorney by email to:
tim.labadie@traviscountytx.gov, but there has been insufficient time for him to
respond to my communication before I had to file this motion to meet the clerk's
deadline. I assume the State will oppose the relief requested.
Isl Tom Benson
Tom Benson
CERTIFICATE OF SERVICE
I certify that l have on this 5th day of January, 2015, after 5 :00 P.M., caused
a true and correct copy of the foregoing Appellant's Motion to DETERMINE
PROPER DESIGNATION OF CASE AND APPROPRIATE APPELLATE
FILING FEE to be delivered to Tim Labadie, Assistant Travis County Attorney by
email to: tim.labadie@traviscountytx.gov.
Isl Tom Benson
Tom Benson
APPELLANT'S MOTION TO DETERMINE PROPER DESIGNATION
OF CASE AND APPROPRIATE APPELLATE FILING FEE PAGE5 OPS
Tom Benson v. State
Combined Opinion